Breaux v. Wal-Mart Stores, Inc.

635 So. 2d 667, 93 La.App. 3 Cir. 1035, 1994 La. App. LEXIS 1004, 1994 WL 113610
CourtLouisiana Court of Appeal
DecidedApril 6, 1994
Docket93-1035
StatusPublished
Cited by11 cases

This text of 635 So. 2d 667 (Breaux v. Wal-Mart Stores, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Breaux v. Wal-Mart Stores, Inc., 635 So. 2d 667, 93 La.App. 3 Cir. 1035, 1994 La. App. LEXIS 1004, 1994 WL 113610 (La. Ct. App. 1994).

Opinion

635 So.2d 667 (1994)

Charlene BREAUX, et al., Plaintiffs-Appellants,
v.
WAL-MART STORES, INC., Defendant-Appellee.

No. 93-1035.

Court of Appeal of Louisiana, Third Circuit.

April 6, 1994.

*668 Lee Andrew Gallaspy, Kermit A. Doucet, Michael G. Daiy, and Jeffery F. Speer, Lafayette, for Charlene Breaux, et al.

Philip Andre Fontenot, Lafayette, for Wal-Mart Stores, Inc.

Before KNOLL, COOKS and WOODARD, JJ.

COOKS, Judge.

Charlene Breaux, John Breaux, and their minor daughter Halynn appeal the sufficiency of a jury award and a finding that Charlene Breaux was thirty (30%) percent at fault in causing a slip and fall accident which occurred at a Wal-Mart store in the city of Lafayette. For the reasons set forth below, we amend the judgment and affirm.

FACTS

Charlene Breaux, joined by her husband and their two children, visited the local Wal-Mart store to exchange a fishing rod purchased earlier. On arrival, one of the children expressed a desire to use the restroom. In response, Charlene proceeded to the store's restroom accompanied by the children. Once in the restroom, Charlene proceeded to the first two stalls which she discovered were too filthy for use. She then entered the third stall. While using the toilet, she observed water leaking from it and *669 the floor was wet. After leaving the stall, Charlene explained, she decided to pick-up Halynn who was only fifteen months old and still wearing diapers. As she proceeded back toward the third stall to warn Heather of the danger, Charlene slipped and fell on the floor striking her head against the stall and landing on her buttocks.

Charlene immediately informed Wal-Mart personnel of the accident. She located her husband; and they exchanged the fishing rod before leaving the store. That same night, Charlene and Halynn visited the emergency room at Hamilton Medical Center for examination. Halynn's medical findings were unremarkable. However, Charlene suffered back discomfort and a temporomandibular joint (TMJ) injury which required splint therapy to stabilize her jaw. As a result of these injuries, Charlene alleges she was not able to return to her part-time job.

Charlene Breaux and John Breaux, individually and on behalf of Halynn Breaux, filed suit against Wal-Mart seeking damages for medical expenses, pain and suffering, mental anguish and inconvenience, loss of earnings and loss of consortium. A jury trial was held. At trial Charlene testified she slipped and fell solely because of water on the restroom floor. Wal-Mart sought to exculpate itself from full liability by asserting Charlene had knowledge of the floor dampness prior to her fall; and she did not take reasonable steps to avoid the fall. Wal-Mart also alleged the third stall had been taped shut and the water valve on the toilet turned off shortly before the accident; but, an unidentified person or perhaps Charlene "busted" the tape and tampered with the water valve.

After trial, the jury found Wal-Mart seventy (70%) percent at fault and Charlene Breaux thirty (30%) percent at fault in causing the accident. Charlene was awarded damages in the amount of $3,000.00 for past and future medical expenses, $1,500.00 for physical pain and suffering, $1,000.00 for mental pain and suffering, and $350.00 in lost wages. No loss of consortium was awarded to either John or Halynn Breaux; and $97.00 was awarded for Halynn Breaux's medical expenses. Subsequent to trial, the Breauxs filed a Motion for Additur and/or New Trial which was denied by the trial court. They appealed the judgment, assigning as error the following: (1) The jury abused its discretion in finding Charlene Breaux thirty (30%) percent at fault; (2) the jury abused its discretion in awarding inadequate damages to them; and (3) the trial court erred in refusing to grant the Motion for Additur and/or Motion for New Trial.

CHARLENE BREAUX'S FAULT

We must determine, first, whether the jury erred in finding Charlene Breaux partially at fault in causing her own injuries. The trier of fact is required to consider the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed. Watson v. State Farm Fire and Casualty Insurance Company, 469 So.2d 967 (La. 1985). The supreme court, in Watson, at 974, further explained:

"In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties."

Unquestionably, the moisture on the floor created an unreasonable risk which served as the major factor in causing Charlene's fall. Wal-Mart does not assign as error the jury's finding casting it principally at fault in causing the accident. See LSA-R.S. 9:2800.6. Next, the triers of fact were required to determine "what reasonable precautions" might have been exercised by Charlene to guard against the particular risk posed by the floor's condition in assessing *670 her relative fault, if any, in causing the injury she ultimately sustained. The fact that Charlene Breaux noticed moisture on the floor after entering the restroom legally does not compel a finding that she was negligent or acted in an unreasonable manner in exiting the restroom. Neither the jurisprudence nor legislative adoption of comparative fault in assessing liability in such cases automatically require fact finders to assign fault whenever a version of the facts might suggest a plaintiff failed to take "every possible step" to guard against the risk of falling after noticing a wet floor surface. However, a patron must exercise reasonable care for his own safety when facing obvious hazards. Initially Wal-Mart argues, after noticing the wet floor, Charlene did not exercise reasonable care or precaution to avoid the obvious danger of slipping and falling on the damp floor surface. Her failure to exercise greater care was not excusable, according to Wal-Mart, because she was not in an area where her attention might have been diverted by items displayed on a store shelf. See Stockwell v. Great Atlantic, 583 So.2d 1186 (La. 1st Cir.1991). To the contrary, it contends, she was fully cognizant of the danger; yet she elected "to pick up Halynn, [place] her on her hip, and [turn] around again in the dampness... [heading] back towards the third stall to see about her other daughter, Heather." Apparently, Wal-Mart convinced the jury (as it argued in brief) that Charlene should have "held her daughter's hand in the bathroom and walked back with her to the third stall instead of picking her up to walk in water."

Wal-Mart also called a store employee to testify at trial that approximately thirty minutes before the accident, the water valve on the third stall's toilet was turned off and a sign was taped on the stall's door which read "out of order." Wal-Mart stated when the toilet was inspected immediately after Charlene's fall the tape was "busted through," the sign was hanging on the door, and the water valve was turned on.

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Bluebook (online)
635 So. 2d 667, 93 La.App. 3 Cir. 1035, 1994 La. App. LEXIS 1004, 1994 WL 113610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breaux-v-wal-mart-stores-inc-lactapp-1994.